Saturday, January 15, 2011

Money, philosophical disdain for program leads district officials to ignore law

Assistant Attorney General says schools don't have the authority to determine constitutionality, ignore laws

School districts in the Tulsa area that are refusing to implement a new state law continue to cite senseless arguments as the basis for their actions. 

Monday, a Tulsa World story by reporter Kim Archer shows that district officials continue to ignore their legal obligations because of their philosophical disdain for the new program - not because of constitutional concerns. The Tulsa World story quotes Jenks Superintendent Kirby Lehman and Union Superintendent Cathy Burden:
"Which is more important, the (state) Constitution or recently enacted laws?" Jenks Superintendent Kirby Lehman said in a written statement. "That is the dilemma currently faced by school board members and other school officials in Oklahoma."
"We are convinced that it is more ethical and responsible to follow the laws already in place," Union Superintendent Cathy Burden said. 
One of the more troubling arguments against the law is that "school systems may resist placing students on federal individualized education programs" to keep them from qualifying for the scholarship so the district can keep the money.

This absurd refrain from these school boards and their superintendents that the law is unconstitutional and therefore they are faced with a dilemma - follow the law or follow the state Constitution - has been so completely refuted that you begin to wonder about their competence. 

The Tulsa School Board will reconsider their vote to ignore state law this Tuesday. If Tulsa votes to implement the program they will join Owasso and Bixby who reversed their earlier votes to ignore state law. A plan to consider moving the administration of the program to the state Department of Education this legislative session is the stated reason for their willingness to now do their job. 

But no matter what changes are made some will not be satisfied until special-needs students and their parents lose the opportunity that this program provides.

Burden said the proposed amendment still wouldn't solve the problem. 
"It is unconstitutional in the state of Oklahoma to send public dollars to a parochial school," she said.
Superintendent Burden will certainly be surprised to learn that public schools have for years paid to place some students that are on Individualized Education Programs in private schools - including religious schools. The main difference is that in the past it was at the discretion of the school district. With HB 3393 parents have the opportunity to decide.

In an October 11, 2010 post on this blog I explained that House Bill 3393 is constitutional based on well-established case law. 
"It is well established case law that a legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. The Oklahoma Supreme Court has consistently held that statutes should be construed whenever possible so as to uphold their constitutionality. There is no indication that the provisions of HB 3393 are plainly inconsistent with the Constitution. While the specific provisions of HB 3393 have not yet been reviewed by any court, other scholarship programs that were 'neutral' or 'of direct benefit to students' have been upheld by the Supreme Court and other courts."
This legal fact is echoed in a letter from Assistant Attorney General Gay Tudor dated November 23, 2010 to state Department of Education General Counsel Kay Harley . The letter begins by explaining that it was written because Ms. Harley had asked for legal advice about how the state Department of Education should respond to the actions of the Tulsa area school boards that have "voted not to participate in the Program, thus depriving eligible parents in those districts of the statutorily-granted option to receive certain benefits under the Program." The letter goes on:
"You state, based on news accounts, that the boards' stated reasons for non-compliance with the statutes are concerns for the statute's constitutionality in several respects. This letter does not address the constitutionality of the statutes. Rather, we explore whether a public entity may legally refuse to comply with State law based on a unilateral determination that the law is unconstitutional."
The letter from Assistant Attorney General Gay Tudor next addresses the argument of these school boards that the law is unconstitutional. 
"First, Oklahoma's Supreme Court has enunciated the well-established principle that a statute is presumed constitutional. 'A heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality and every presumption is to be indulged in favor of the constitutionality of a statute.' Fent v. Okla. Capitol Imp. Auth., 984 P.2d 200, 204(Okla.1999)(citation omitted)."
The letter from Ms. Tudor then turns to the actions of the school boards in question to unilaterally determine that the program is unconstitutional and refuse to implement the law. 
"In light of this presumption in favor of the statute, the next question is which branch of our scheme of government has authority to make a determination regarding the constitutionality of a legislative act. According to the Oklahoma Supreme Court, 'The Court alone has the power to authoritatively determine the validity or invalidity of a statute.' York v. Turpen, 681 P.2d 763, 767(Okla. 1984)(citation omitted). Citing the doctrine of separation of powers, the Court determined that to make an opinion of the Attorney General as to the unconstitutionality of a statute 'binding upon state officers prior to judicial intervention is an unwarranted encroachment on the power of the legislature to determine policy. . .'. Id. It follows that the board of a school district lacks authority to make that determination."
The letter makes it clear that it is the responsibility of a school board to obey the law even under the current circumstances.
"Disagreement with the legislative policy or concerns over the statute's validity do not relieve any public employee or official of their responsibility absent a determination from the court."
So the questions remain, why do these school boards and superintendents believe they are above the law? Why are members of only five school boards out of more than 500 choosing to violate the law and their oath? What are these school boards doing to improve special education in their district so that parents and students don't want to leave? Why did the boards wait until after the law was in effect and after many parents had already transferred before voting to ignore the law? 

Their stated reason for ignoring the law and their oath simply doesn't make sense in light of the facts.
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